Schulz informed Heim on or about July 22 of the prospective price changes of Twentieth Century and New Century, including the Proposed 17 cents retail price of the loaf then being sold at 15 cents retail (N.T. 319, 1236-40, 1601, 1689, 1699 and 1715-7).
In addition to the evidence referred to above, the following exhibits indicate the knowledge of prices which Heim secured through his subordinates in July 1960: G-15, 17, 46 and 47.
In the latter part of 1960, Heim discussed with Mr. Goldberg, a friend of his in York, that a York baker (J. S. Hershey Baking Company, hereinafter called 'Hershey Company') was supplying New Century (a Philadelphia distributor) with bread, inquiring if such baker was 'a legitimate operator' (N.T. 1682-3 and 1748), and Goldberg repeated the occurrence of this discussion to the President of this company, J. C. Hershey (N.T. 974-6 and 1684). Eventually, a meeting of Goldberg, Heim, Hershey and some other Hershey Company employees (Boileau and Kauffman) was arranged at the Cherry Hill Inn (near Philadelphia) on February 1, 1961. During this meeting, there was a discussion of the private label bread business in Philadelphia, during which Heim said that he had arranged a proposed price rise in the summer of 1960 pursuant to which Ward was to raise its price first, then Frankford-Quaker, then Schulz, and 'that Fleischmann and Rossi would raise the price to (New) Century which would force them to go up at the same time' (N.T. 562-5).
Boileau also testified that Heim stated that Hershey Company 'upset the apple cart' by supplying economy bread to New Century without insisting that they put 17 cents end labels on such bread (N.T. 566). Hershey testified to the same statements by Heim (N.T. 784).
Heim is greatly respected by the directors of Frankford-Quaker and he has the authority to change the retail price of bread (N.T. 1724-5). No board approval was secured for introducing the Betsy Ann loaf at 15 cents into certain parts of Philadelphia on July 28, 1960. The fact that Heim decided to sell a 15 cents Betsy Ann loaf in limited sections of Philadelphia does not establish that he did not participate in the agreement to raise the price of his Unity loaf and of economy bread in all areas where such bread was being sold.
In view of the foregoing portions of the record, among others, the Motions for Judgment of Acquittal by defendants Heim and Frankford-Quaker Grocery Company must be denied.
The reasons for a new trial alleged in the above Motions have been carefully considered and found not to 'require' such a trial 'in the interest of justice.' See F.R.Crim.P. 33. In view of the complete treatment of these reasons in the various Memoranda of authorities filed by the Government (for example, Document 134), only brief reference to a few of them is justified at this time.
Use of the Grand Jury Testimony to Refresh Memory and as Past Recollections Recorded
The authorities cited at pages 13-18 of the Government's MEMORANDUM IN OPPOSITION TO DEFENDANT'S POST TRIAL MOTIONS (Document 134) support the action taken by the trial judge in these matters. In addition to those authorities, the trial judge relied on Continental Baking Co. v. United States, 281 F.2d 137, 146-148 (6th Cir. 1960), and United States v. Consolidated Laundries Corporation, 291 F.2d 563, 574 (2nd Cir. 1961)
Use of G-50 and Other Documents to Refresh Recollection
The decisions on this point are thoroughly collected at page 19 of Document 134.
The authorities have supported the sue of a document prepared by A to refresh the recollection of B at least since the following, classic, 1810 statement on this subject by Lord Ellenborough in Henry v. Lee, 2 Chitty 124 (1810):
'If upon looking at any document he can so far refresh his memory as to recollect a circumstance, it is sufficient; and it makes no difference that the memorandum is not written by himself, for it is not the memorandum that is the evidence but the recollection of the witness.'
See III Wigmore on Evidence (3rd Ed.) §§ 758 and 759, pp. 100 ff. and language from Jewett v. United States, 15 F.2d 955, 956 (9th Cir. 1926), quoted by Government counsel at N.T. 384.
The Questioning of Witnesses by the Trial Judge as Denying to the Defendants the Effective Assistance of Counsel
Shortly before the trial commenced, the United States Court of Appeals for the Third Circuit commented as follows on the right of the trial judge to question witnesses in a criminal case:
'We have long abandoned the adversary system of litigation which regards opposing lawyers as players and the judge as a mere umpire whose only duty is to determine whether infractions of the rules of the game have been committed. See 3 Wigmore, Evidence (1940 Ed.), § 784. A trial is not a contest but a search for the truth so that justice may properly be administered. For the purpose of eliciting the germane facts, a judge may on his own initiative and within his sound discretion interrogate witnesses. 3 Wigmore, supra; Annotation, 11 A.L.R. 1172 (1933); 53 Am.Jur., Trial, § 75. * * * In our federal system the trial judge has the duty to discover the truth, elicit material facts, clarify testimony, and expedite the trial as much as possible. United States v. Brandt, 196 F.2d 653 (2d Cir., 1952).'
Riley v. Goodman, 315 F.2d 232, 234 (3rd Cir. 1963). See, also, the authorities cited at pages 29-31 of the Government's Memorandum In Opposition To These Motions (Document 134), where it is pointed out at page 30 that the trial judge has wide latitude in asking leading questions. The undersigned has examined the pages of the transcript complained of in paragraphs 7 of Documents 122 and 123 and has concluded that the actions of the trial judge, as recorded on those pages, are not a proper basis for a new trial. See first sentence of F.R.Crim.P. 33.
Deletion of Entries of 1/26/61, 1/30/61, 2/16/61 and 3/1/61 from G-50.
The deletion of these diary entries primarily on the grounds of lack of relevancy is covered at N.T. 518-544. The contents of these diary entries, which are blocked out in G-50, may be determined by the appellate court through examining them as they have been reproduced on a sheet of paper enclosed in a sealed envelope docketed in the Clerk's file as Document 138. Authorities in support of the ruling by the court appear at pages 20-24 of Document 134.
Rejection of Diary Entry of 2/10/61 When Offered at N.T. 1807 (par. 12 of Documents 122 and 123)
This entry had been read into the record at N.T. 727, so that if there were any error in rejecting the entry as it appeared in G-50, such error would be harmless. The record indicates that the court reserved ruling on this offer at N.T. 1814. It was counsel's responsibility to raise the point again at the close of all the evidence if no ruling was, in fact, made. If an appellate court treats the ruling as a rejection of the entry, the authorities at pages 24-26 of Document 134 support such rejection.
II. Post-Trial Motions of Theo Staab, also known as Theodore Staab (Document 120)
After the July 1960 agreement to raise the price of economy and other bread had been made, the price rise of economy bread was cancelled due to New Century's refusing to raise its price after securing a new supplier in York (the Hershey Company). In an effort to have the Hershey Company either persuade New Century to raise its price or to stop supplying it with bread, Schulz started to sell bread at very cheap prices in York (Hershey Company's home market) in January 1961. In order to deal with Schulz's invasion into the York market with this cheap bread, defendant Staab arranged a meeting at the Penn Harris Hotel on February 14, 1961 (N.T. 838, 1268-9, 1890 and G-55). Prior to coming to this meeting, Staab advised Mr. Hershey (1) that Schulz would not get out of York until Hershey Company did something about Philadelphia, and (2) that Stroehmann and Holsum would give him until March 1 to get the Philadelphia market straightened out, showing that Staab was aware of the attempts to raise the price of bread in Philadelphia (N.T. 792-3).
At the February 14 meeting in the Penn Harris Hotel, several of those present testified that Staab participated in discussions of the desirability of getting New Century to raise its price of bread in Philadelphia and of Hershey Company's representatives' trying to accomplish this.
After the meeting, the representatives of Hershey Company went to Philadelphia and informed New Century of 'what was being asked of us' but 'They didn't feel it was practical' (N.T. 588; cf. 1074). Staab concedes that after the February 14 meeting, Hershey called him and said 'You might as well call Schulz and tell him it's no go. We saw Dougherty, and it's no go' (N.T. 1945). Allen testified that Staab also called him after February 14 and asked why Schulz was not keeping his word in the York market (N.T. 415).
This record contains substantial evidence that Staab acquiesced in a conspiracy to raise the price of economy bread in Philadelphia and made affirmative suggestions to implement such conspiracy.
For this reason, Staab's Motion for Judgment of Acquittal must be denied.
The reasons for a new trial alleged in the above Motion have been carefully considered and found not to 'require' such a trial 'in the interest of justice.' See F.R.Crim.P. 33. In addition to the authorities cited
and discussion set forth above, it is only necessary to comment on these items:
Contention That Trial Judge Erred In Restricting Cross-Examination of Witness Fox (pp. 19-21 of Staab's Brief, being Document 143, and pp. 19-23 of Reply Brief, being Document 144)
The trial judge believes that it would be almost impossible for a person, in the spring of 1963, to testify with certainty that he did not receive a phone call in February 1961 (over two years previous to the time of the testimony). Therefore, the testimony of this witness was treated as if he might have forgotten that he received a call from Staab (which was the testimony of three other witnesses questioned on the subject -- N.T. 1967, 1996 and 1999). For this reason, any errors in the rulings complained of were harmless.
However, the trial judge has considered the relatively small number of bakers doing business in the York area who were represented at the Harrisburg meeting in evaluating defendant's contention that the 'sole purpose' of that meeting was to discuss 'the deteriorating market condition in York' (see footnote 13 above).
Contention That The Trial Judge Erred In Applying the Rule of Reasonable Doubt (p. 22 of Staab's Brief, being Document 143 and p. 24 of Reply Brief, being Document 144)
Conviction beyond a reasonable doubt does not require conviction beyond all doubt and, hence, conviction is proper even if the fact finder has some doubt. See Murphy v. United States, 33 F.2d 896 (3rd Cir. 1929), cert. den. 280 U.S. 584, 50 S. Ct. 35, 74 L. Ed. 634 (1929). The trial judge has consistently used language such as the following in criminal charges which have been affirmed by the appellate courts:
'The term 'reasonable doubt' means such a doubt as will leave the juror's mind, after a candid and impartial consideration of all the evidence, so undecided that he or she is unable to say that he has an abiding conviction or reasonable assurance of the defendant's guilt. It is the kind of a doubt that would make you hesitate to act in matters of highest importance to you in your daily life. If you have a reasonable doubt, an honest reasonable doubt, after considering all the evidence, the defendant is entitled to the benefit of that doubt, and must be acquitted.
'On the other hand, members of the jury, it cannot be a fancied doubt, and a juror has no right to raise up false standards or to conjure up a doubt in order to escape the performance of an unpleasant duty. 'Beyond a reasonable doubt' does not mean beyond all doubt.'
United States v. Rosenberg, D.C., 157 F.Supp. 654 (N.T. 581 of October 1957 trial).
See United States v. Rosenberg, 257 F.2d 760 (3rd Cir. 1958), aff'd. 360 U.S. 367, 79 S. Ct. 1231, 3 L. Ed. 2d 1304 (1959); United States v. Damiano, 290 F.2d 817 (3rd Cir. 1961); United States v. Jackson, 300 F.2d 758 (3rd Cir. 1962), cert. den. 374 U.S. 835, 83 S. Ct. 1882, 10 L. Ed. 2d 1056 (1963); United States v. Bregman, 306 F.2d 653 (3rd Cir. 1962), cert. den. 372 U.S. 906, 83 S. Ct. 718, 9 L. Ed. 2d 716 (1963).
The above-quoted language was applied in making the findings in this case.
The letters of September 12 and 20, 1963, have been attached to the backer of Staab's Reply Memorandum (Document 144). The letters of September 17 and 23 have been attached to the Government's Memorandum (Document 134).
An order denying the above post-trial motions will be filed at the time of imposing sentence on defendants, which shall be at 4 P.M. on December 6, 1963, unless defendants request an earlier date.
CONCERNING CROSS-EXAMINATION OF WITNESS FOX
Defendant Staab contends that the court erred by interfering with his order
of cross-examination of rebuttal witness Fox. His contention is that he wanted to lead up to a question, i.e., whether or not the witness knew of Staab's contrary testimony under oath.
The first several questions asked on cross-examination concerned statements the witness had given to the Government and the witness' testimony given on direct examination. Then counsel asked: 'Now, did Mr. Sarbaugh tell you, or do you know that Mr. Staab has previously testified under oath * * *' (N.T. 1973). Government counsel objected (on grounds that it was not material what Sarbaugh told the witness; see N.T. 1966) and a side bar conference followed. At side bar, the court agreed that the defendant could ask whether the witness was presently aware of Staab's contrary testimony under oath and the question was phrased. In substance, this was the question that counsel had started to ask, but eliminating the reference to Mr. Sarbaugh. After side bar, instead of continuing with that question, which defense counsel had stated and agreed upon, he asked whether Fox was aware that Schulz was selling bread in Philadelphia and York (N.T. 1978) and then asked if the witness knew Staab to be honorable man. Ruling on the first question was reserved and an objection to the second question was sustained.
Counsel had been given permission to complete the question he had started, but declined to do so, and instead took another tack. The court then asked counsel to pursue that question which had been approved and discussed at side bar, i.e., would your testimony be different if you knew Staab testified to the contrary? When the question was asked, the witness stated that it would not. In the absence of some further explanation at side bar, there was no error in asking counsel to pursue first that which had been discussed and agreed upon. The orderly conduct of the trial is part of the court's duty.
At the conclusion of the witness' testimony, defense counsel was offered an opportunity to argue the question on which ruling had been reserved, but he declined to do so (N.T. 1986-7).